5th Circuit Affirms WH Injunction, Cites Rare ‘Campaign’ of Viewpoint 'Coercion'

DOJ attorneys convinced a three-judge 5th U.S. Circuit Appeals Court panel, all Republicans, that U.S. District Judge Terry Doughty’s July 4 injunction was overbroad and vague when it barred dozens of Biden administration officials from pressuring social media platforms to moderate unfavorable content. But the panel’s opinion late Friday (docket 23-30445), paring down the injunction and vacating it outright against officials from three federal agencies, left intact the restrictions on the White House, the Office of the Surgeon General, the FBI and the Centers for Disease Control and Prevention.

The 5th Circuit, in the decision, granted DOJ's request for an extended 10-day administrative stay through Sept. 18 as the government ponders whether to file an application for review with the U.S. Supreme Court.

In a new twist, DOJ, in an emergency motion Monday, asked the 5th Circuit for a partial stay of the preliminary injunction entered July 4 by the district court, to the extent that that injunction is “inconsistent” with the 5th Circuit’s Friday ruling, pending the issuance of the 5th Circuit’s mandate. The government, in the alternative, asks the 5th Circuit to issue its mandate immediately, said the emergency motion. The mandate is not scheduled to issue until Oct. 31, it said.

“One of those forms of relief is necessary to avoid allowing the preliminary injunction entered by the district court to take effect” when the 5th Circuit’s 10-day administrative expires Sept. 18, even though the 5th Circuit concluded that the injunction should be vacated in part and that the remaining portion of the injunction should be modified. It asked the 5th Circuit to act on the motion by Wednesday “because the nature of the injunction that will take effect upon the expiration of the administrative stay will inform any request for relief the government may file in the Supreme Court,” it said. Either form of relief would avoid the "improper result of allowing the district court’s preliminary injunction to regain effect even after having been held invalid" by the 5th Circuit, it said.

The wording of the 5th Circuit opinion Friday appeared to treat SCOTUS review as a foregone conclusion. “We do not take our decision today lightly,” said the 74-page opinion from Judges Edith Brown Clement, Jennifer Walker Elrod and Don Willett. But the Supreme Court “has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life,” free speech, it said.

The district court was “correct in its assessment” that “unrelenting pressure” from certain government officials likely “had the intended result of suppressing millions of protected free speech postings by American citizens,” said the opinion. The 5th Circuit sees “no error or abuse of discretion in that finding,” it said. Clement and Elrod are President George W. Bush appointees and Willett was appointed by President Donald Trump.

The opinion “is a significant victory for the American people,” said Louisiana Attorney General Jeff Landry (R) in a statement Saturday. “It confirms what we have said from the very beginning: the federal government is not permitted to engage in viewpoint suppression, no matter your political ideology,” Landry said. His office is “determined to bring this to trial so that the victims are vindicated and we can prevent this gross abuse of power from ever happening again, especially in a time of crisis when information is most important,” he said.

The “landmark lawsuit” was filed against dozens of federal officials “to halt the biggest violation of the First Amendment in our nation’s history,” said Missouri AG Andrew Bailey (R), Landry’s co-lead plaintiff, in a statement Friday. “The first brick was laid in the wall of separation between tech and state on July 4” with Doughty’s injunction, he said. The 5th Circuit’s ruling Friday was “yet another brick,” he said.

The evidence shows that the White House, acting “in concert” with the surgeon general's office, likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences,” said the 5th Circuit’s opinion. They also “significantly encouraged the platforms’ decisions by commandeering their decision-making processes,” it said. Both offenses were in violation of the First Amendment, it said. The FBI also likely “coerced the platforms into moderating content,” and encouraged them to do so “by effecting changes to their moderation policies,” it said.

CDC officials, though “not plainly coercive,” likely as well “significantly encouraged the platforms’ moderation decisions,” said the 5th Circuit’s opinion. But the district court erred in enjoining officials from the National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Security Agency and the State Department, it said. “Put simply," it said, there wasn't, at this stage, "sufficient evidence to find that it was likely these groups" coerced or significantly encouraged the platforms' moderation decisions.

It’s true that government officials have a lawful interest in engaging with social media companies, “including on issues such as misinformation and election interference,” said the 5th Circuit opinion. But the government isn’t permitted “to advance these interests to the extent that it engages in viewpoint suppression,” it said.

While the government raises legitimate concerns that the injunction could “sweep in” lawful speech, “we have addressed those concerns by modifying the scope of the injunction,” said the opinion. Doughty’s injunction was “both vague and broader than necessary” to remedy the plaintiffs’ injuries, it said. It’s “axiomatic” that an injunction is overbroad “if it enjoins a defendant from engaging in legal conduct,” it said. Nine of the injunction’s 10 prohibitions “risk doing just that,” it said. Many of the provisions also “are duplicative of each other and thus unnecessary,” it said. The injunction’s eight “carveouts” on permitted lawful government conduct don’t “solve its clarity and scope problems,” it said. Though they seem to greenlight legal speech, the carve-outs, too, “include vague terms and appear to authorize activities that the injunction otherwise prohibits on its face,” it said.

The 5th Circuit struck all the injunction’s provisions, except for the sixth, which bars government officials from threatening, pressuring or coercing social-media companies in any manner to remove, delete, suppress or reduce posted content of postings containing protected free speech.” But those terms “could also capture otherwise legal speech,” said the opinion. So the injunction’s language “must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited,” it said.

The 5th Circuit’s “standard practice” is to remand to the district court “to tailor such a provision in the first instance,” said the opinion. “But this is far from a standard case,” it said. “In light of the expedited nature of this appeal, we modify the injunction’s remaining provision ourselves,” it said.

The modified language of prohibition six bars government officials from taking any actions, “formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech,” said the opinion. That includes, but isn’t limited to, “compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes,” it said.

Since the modified injunction doesn’t “proscribe” government officials from activities that could include legal conduct, “no carveouts are needed,” said the opinion. The remaining injunction leaves government officials with “two guiding inquiries,” it said. The first is whether their action could be “reasonably interpreted as a threat” to take an “official action” against the social-media companies if the companies decline the government’s request to remove, delete, suppress or reduce protected free speech on their platforms, it said. The second is whether government officials “have exercised active, meaningful control” over the platforms’ content-moderation decisions “to such a degree that it inhibits the platforms’ independent decision-making,” it said.